Sunday, September 16, 2012

YouTube Copyright Issues -- Fair Use

So I'm having some trouble with the video I uploaded the other day of my talk about aliens. As many have learned, YouTube is in an odd legal position because people can and do upload copyrighted materials by people who do not own the copyright. Obviously, if I was to upload a video I did not make but I try to profit from it, that is all sorts of wrong, both legally and morally. But there are also points when you should be allowed to use another's material without their express permission. The most obvious way is with parody and commentary/criticism (some useful comments can be found here, including statements in my favor when using clips). I'm doing more of the latter in my talk, so I will focus on that.

If I had to have express permission to use the materials of another person to criticize it, you can see an obvious issue: that person probably doesn't want to have that criticism of their work out there, so giving them the power to stop critics from using their material becomes a method of censorship (something creationists have done, for example). And there is legal provision for this under the Digital Millennium Copyright Acts (DMCA). In the legal code 17 UCS Section 107, this considers the nature of the work, and there is the understanding of Fair Use. There is a lot of legalism to it, but one thing generally recognized is the use of materials for commentary/criticism. For example, there are websites pretty much devoted to critiquing movies, such as at That Guy With the Glasses. Such Internet shows could not exist without the Fair Use clause.

Now, in my presentation, I use a bit from the opening of the original Battlestar Galactica (1978), namely the part about how some believing ancient humans may have descended from people from other planets, peoples that may still fight for survival beyond what we know. Since my presentation was about ancient aliens, including in popular culture, I believed this to fall under Fair Use. However, YouTube has an automated system for finding copyrighted materials.

Obviously the algorithm YouTube uses is great for copyright holders; the work is done for them in finding materials they own so they can make sure their property is not used without proper provision. However, the automatic nature of the system means two things: it can make mistakes, and it does not consider the context it is in. That's a significant problem. On the first part, I had uploaded a video about the Star of Bethlehem as used in Zeitgeist, and YouTube said it used copyrighted materials. However, it did not say what material was copyrighted, and the company I had never heard of (La Red, I just double-checked). Best I could tell, YouTube claimed I used materials from a Chilean TV network, though I didn't use anything in Spanish, and the music was public domain.

So I appealed that copyright claim. And how does this work? They send the claim to the company/owner that YouTube says owns the material, and that company decides if in fact I violated their copyright. Oh, WOW is that a lot of power given over to copyright owners, and that makes both censorship and taking another video maker's money away. La Red could have held to the copyright claim, and any ads on my video would have given money to them rather than to me who made the video. This had happened to one person recently; he recorded some things in his backyard along with bird song, and YouTube identified the sounds as a song from the company Rumblefish. This was difficult since there was no song used by the video maker, other than the ambient bird song. So that video maker make a counterclaim, but Rumblefish still claimed one of their songs was being used without permission! One could call that a lie in order to make profit. However, the Internet spoke, and Rumblefish said they made a mistake and lifted the copyright claim.

Mistakes can be made, but it is strange nonetheless to give the prosecuting party the power to also declare guilt. That is so contrary to how a courtroom is: in the above example, Rumblefish should have been the prosecutor, the video maker the defendant, and there would need to be some other entity as judge and/or jury. But Rumblefish was judge and prosecutor, and obvious conflict of interest, especially when no party was wronged except for the defendant.

Now, in my case, the company La Red responded faster than the YouTube team, and more helpfully. In about a day's time, La Red let go of any copyright claim. I only wish I could thank them for being so honest and efficient.

But now I have a new copyright issue, and this time with a company I do know: NBC. As I mentioned, I used part of the opening to BSG 1978, and here things are not so cut and dry and the examples I gave. Indeed, NBC owns the copyright on BSG 1978, I used the opening to that show, and the content match by YouTube was correct. So that part of the process is not at fault at all. So now I have written a copyright counterclaim, stating how my video about ancient aliens falls under Fair Use. This has now been sent to NBC, and someone there has to decide if in fact I fall under Fair Use. Again, YouTube is giving all the power to the copyright holder in judging Fair Use. I doubt NBC will hire a thousand lawyers to check every complaint sent their way for Fair Use, so more likely some clerk or secretary will have to watch some bit of my video and make a quick decision (poor bloke, by the way). In the mean time, I cannot monetize that video (which is looking to become one of my most trafficked), and I have a strike against my account; too many strikes, and I am gone from YouTube (and perhaps other legal trouble?).

So I am in the hands now of NBC. I can't say how they will judge things, though I think I am in the right. My clip is about 30 seconds out of a over one hour video, and the clip is part of the presentation for commentary and criticism. If I may say, I doubt I reduced the number of views of BSG 1978, and from the audience I showed the clip to it was generally unknown, so if anything I should have increased the number of views of the show (in case you haven't seen the original Battlestar Galactica, it's on Netflix and very entertaining; the new series is also awesome; go watch it now!).

By your command.

Let's see what happens in the next few days, though NBC has until mid-October to decide. That means fewer monetizable views, but I suspect most of the views will come later; it's not like my talk has gone viral. And I still don't know if other copyright claims will come up with my video, especially from ancient astronaut evangelists (again, I claim Fair Use). Again, we'll see.